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2010 DIGILAW 728 (CAL)

Jaymala Das v. UNION OF INDIA

2010-06-30

PRABHAT KUMAR DEY, SUBHRO KAMAL MUKHERJEE

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JUDGMENT Subhro Kamal Mukherjee, J. This is an appeal against the judgement and order dated October 12, 2001 passed by the Railway Claims Tribunal, Kolkata Bench, in Case No. A/722/2000. 2. The application for compensation was filed before the Railway Claims Tribunal for compensation on account of an untoward incident. The application was filed by Shrimati Jaymala Das, widow of the victim, for self and on behalf of her minor daughter, Rita Kumari, who was about ten years old on the date of filing of the application. In the claim application, it was contended that the victim, namely Jogendra Nath Das, at the time of his journey by 133 Up Howrah Mokama Passenger, fell down from the running train on November 11, 1999 at 11.30 p.m. and sustained severe head injury. He was admitted at Serampore Walsh Hospital. As his condition deteriorated, he was shifted to S.S.K.M. Hospital, Kolkata. He succumbed to his injuries on November 15, 1999. In the application it was categorically stated, in column 7, that the victim was holding a second class railway ticket being no. J-17052. 3. The claim case was registered as Case No. A/722/2000 before the Railway Claims Tribunal, Kolkata Bench. 4. In the written statement the railway authorities, inter alia, alleged that the incident did not fall within the meaning of untoward incident as defined under the Railways Act, (the said Act of 1989 in short). It was stated that the onus to prove the claim solely lay on the applicant. It was for her to prove that the victim was a bona fide passenger of the train. The railway authorities disputed their liability to pay compensation. 5. The applicant deposed before the Railway Claims Tribunal. She stated that her husband was a cobbler. She stated that her husband was travelling by the said train for going to his native place in the district of Begusarai in the state of Bihar. The elder brother of the deceased, who was present at Serampore Railway Station when the victim met with the accident, stated in his deposition that the train was over crowded. The victim boarded the train, but he slipped on the platform and, thereafter, he slipped on the railway track He stated that his brother was trying to enter into the compartment, but the train started moving. The victim boarded the train, but he slipped on the platform and, thereafter, he slipped on the railway track He stated that his brother was trying to enter into the compartment, but the train started moving. His brother tried to place his feet on the foot-board of the train, but due to heavy rush he was pushed and fell on the platform. He stated that his brother had an ordinary second class passenger ticket from Serampore to Mokama. 6. Madhusudan Saha was the only witness on behalf of the railway administration. He was the Assistant Station Master of Serampore Railway Station at the relevant point of time. On coming to know of the incident, he sent an information to the Medical Officer of Serampore Walsh Hospital for treatment of the victim. He, also, proved the station diary where the accident was recorded. He stated that he had no personal knowledge of the accident, but he confirmed that he took the initiative to send the victim to the hospital. 7. The Railway Claims Tribunal rejected the application for compensation primarily on the ground that the applicant failed to prove that her husband was a bona fide railway passenger holding valid railway ticket. According to the Railway Claims Tribunal as she failed to prove her case that her husband was a bona fide railway passenger, she was not entitled to receive any compensation. 8. The victim was a cobbler. He was going to his native place in the district of Begusarai in the state of Bihar. It is quite natural for him to travel by a passenger train in general compartment. Travelling by a reserved compartment is a luxury for such a person. 9. In the claim application it was categorically stated that the victim possessed a railway ticket being no. J-17052. The brother of the victim, who was present at the time of the incident, also deposed that the victim possessed a valid railway ticket. The railway administration in the written statement vaguely stated that it was to be proved by the applicant that the victim was a bona fide passenger of the train having a valid ticket. The witness of the railway administration did not utter a single word. We have no reason to disbelieve the brother of the victim. 10. The railway administration in the written statement vaguely stated that it was to be proved by the applicant that the victim was a bona fide passenger of the train having a valid ticket. The witness of the railway administration did not utter a single word. We have no reason to disbelieve the brother of the victim. 10. We are of the opinion that the Railway Claims Tribunal erred in law and in fact in refusing the prayer for claim on the ground that the victim was not a bona fide railway passenger. In the claim application there was reference to the ticket purchased by the victim for travelling by the train. The Railway Claims Tribunal observed that the elder brother did not say anything in his deposition that the ticket was in possession of the victim or that the deceased had purchased the said ticket. In fact the brother of the victim in his cross-examination stated that his brother held an ordinary second class passenger ticket. The original railway ticket was, also, filed before the tribunal and is lying with the records. 11. The Railway Claims Tribunal was unnecessary critical of the elder brother of the victim. The victim died while attempting to board the train. The number of railway ticket was categorically mentioned. The ticket has been exhibited before the tribunal. It is not the case of the railway administration that such ticket was not issued from Serampore Railway Station for travelling from Serampore to Mokama. The Railway Claims Tribunal erroneously shifted the burden on the claimant when the onus to prove that deceased was a ticketless passenger and, therefore, not a bona fide passenger, is on the railway administration. 12. We, therefore, hold that the claimant purchased a valid ticket for travelling by 133 Up Howrah Mokama passenger between Serampore and Mokama. The general compartment was filled with passengers. He could not enter into the compartment. He lost his footing when the train started moving. There was a jerk. Due to such jerk and melee he accidentally fell down from the train. 13. It has been proved that the deceased was a bona fide passenger and while travelling by a train he had accidentally fallen down from the running train and received grievous injuries resulting in his death. There was a jerk. Due to such jerk and melee he accidentally fell down from the train. 13. It has been proved that the deceased was a bona fide passenger and while travelling by a train he had accidentally fallen down from the running train and received grievous injuries resulting in his death. This is an untoward incident as defined under Section 123(c)(2) of the said Act of 1989 and as such the dependents of the deceased are entitled to compensation in pursuance of Section 124A of the said Act of 1989. 14. We, therefore, set aside the impugned judgement and order of the Railway Claims Tribunal and hold that the applicant is entitled to compensation of Rs. 4,00,000/- (Rupees four lakh) only in terms of the part I of schedule of compensation payable for death under the Railway Accidents Untoward Incident (Compensation) Rules 1990. 15. The claimant is, also, entitled to interest at the rate of 8% (eight per centum) on the amount of compensation, as above, from the date of filing of the claim application till its realisation. 16. The railway administration is directed to deposit the awarded sum including the interest thereon in the tribunal below within two months from the date. 17. The claimant shall receive the compensation for self and on behalf of her minor daughter as the mother and natural guardian of the minor. She shall invest half of the compensation in interest bearing fixed deposit scheme of any nationalised bank of her choice. She shall be entitled to utilise the interest accrued on such fixed deposit for the benefit of the minor, but she shall not encash the principal. The daughter only on attaining the age of 21(twenty one) years shall be entitled to receive the principal. 18. With the aforesaid directions, the appeal is allowed. 19. In view of the disposal of the appeal, all interlocutory applications become infructuous and those are disposed of. 20. There will be no order as to costs. 21. The office is directed to send down the lower courts records of this case immediately.